STATE OF IOWA, Plaintiff - Appellee, vs. RAMALE ANT R ON HUNT , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-405 / 07-0181
Filed October 15, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RAMALE ANTRON HUNT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Stephen C.
Clarke, Judge.
Ramale
Hunt
appeals
from
his
first-degree
murder
conviction.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant Appellate Defender, for appellant.
Ramale Antron Hunt, pro se.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith and Sue
Swan, Assistant County Attorneys, for appellee.
Heard by Mahan, P.J., and Vaitheswaran and Doyle, JJ.
2
VAITHESWARAN, J.
The shooting and death of a man in Waterloo led to the filing of a firstdegree murder charge against Ramale Hunt.
A jury found Hunt guilty as
charged. On appeal, Hunt and his attorney argue he is entitled to reversal based
on the following claimed errors: (1) there was insufficient evidence that he acted
with malice aforethought or that his acts were willful, deliberate, and
premeditated; (2) the district court erred in overruling his “challenge to the State‟s
peremptory strike of the only minority juror remaining on the jury panel”; (3) the
district court erred in denying his motion for new trial based on prosecutorial
misconduct; (4) the district court erred in denying his request to present the
videotaped statement of a witness; (5) the district court erred in excluding certain
impeachment evidence; (6) the district court erred in submitting a jury instruction
on multiple theories; (7) the district court erred in refusing to grant a mistrial
based on a police officer‟s testimony; (8) the district court erred in admitting
deposition testimony of a witness who was deemed unavailable; (9) the district
court erred in admitting hearsay testimony concerning the disposal of a gun; and
(10) the district court erred in excluding a videotaped interview of a witness.
I.
Sufficiency of Evidence.
The jury was instructed that the State had to prove the following elements
of first-degree murder:
1. On or about the 6th day of June, 2004, the defendant shot Rob
Robinson.
2. Rob Robinson died as a result of being shot.
3. The defendant acted with malice aforethought.
4. The defendant acted willfully, deliberately, premeditatedly and
with a specific intent to kill Robinson.
3
Hunt contends there was insufficient evidence to establish that he acted with
malice aforethought or that his actions were willful, deliberate, and premeditated.
A finding of guilt is binding if supported by substantial evidence. State v. Dalton,
674 N.W.2d 111, 116 (Iowa 2004).
With respect to the malice aforethought element, the jury was instructed
that the phrase meant “a fixed purpose or design to do some physical harm to
another which exists before the act is committed.” The jury was further instructed
that malice aforethought did “not have to exist for any particular length of time.”
Finally, the jury was instructed that malice aforethought could be “inferred from
the defendant‟s use of a dangerous weapon,” and a gun was a dangerous
weapon.
The jury also received definitions of “willful,” “to deliberate,” and
“premeditate.” “Willful” was defined as “intentional or by fixed design or purpose
and not accidental.” “To deliberate” was defined as “to weigh in one‟s mind, to
consider, to contemplate, or to reflect.” “Premeditate” was defined as “to think or
ponder upon a matter before acting.”
For purposes of this argument, Hunt appears to concede that he shot
Robinson, but argues he was “attacked and cut by a blow from Rob Robinson”
and the attack “was sufficient provocation to excite in a reasonable person an
irresistible passion to retaliate.” In his view, the evidence supported a finding of
guilt on the lesser included offense of voluntary manslaughter but not on firstdegree murder. We are not persuaded by this argument.
The record reveals the following facts. A waitress at a bar in the vicinity of
the shooting saw Hunt running outside and noticed that his face was bloody and
4
there was an object in his hand. Shots were fired from Hunt‟s direction towards
Robinson. Robinson stumbled. At this point, the waitress went inside the bar.
When she came out, she saw Robinson face down on the ground. Based on the
shots she heard previously, she came to the conclusion that the object in Hunt‟s
hand was a gun.
She had no doubt the shooter was Hunt.
Although the
waitress‟s version of events at trial differed from versions she had previously
given, it was the jury‟s prerogative to assess this inconsistency.
State v.
Frommelt, 159 N.W.2d 532, 535 (Iowa 1968) (“[T]he jury is entitled to weigh one
[statement] against the other to decide if such a fickle witness is worthy of
belief.”).
A Waterloo police officer testified he investigated gunfire at the home of
Hunt‟s girlfriend three days before the shooting of Robinson. At least six or
seven bullets struck the girlfriend‟s vehicle and house. The officer interviewed
Hunt, who told him he believed a gang called L-Block was behind the gunfire.
Hunt also mentioned the name of Robinson‟s nephew. Hunt talked generally
about his theory of retaliation, stating it should occur within a day or a few days.
On the night of Robinson‟s shooting, a woman who knew both Hunt and
Robinson saw Hunt chasing Robinson around a building. After the men turned
the corner of the building, she heard approximately three gunshots, saw the flash
from a gun, and smelled gunfire. She stated she saw Hunt shoot Robinson. The
defense impeached her with a prior statement in which she said she could not
see who was shooting or who was shot but, again, it was the jury‟s prerogative to
determine what weight to give her trial testimony. Id.
5
Another witness testified he saw Robinson two days before the shooting.
Robinson told him he was having problems with Hunt and he felt as if something
was going to happen to him. The witness watched a fight between Hunt and
Robinson three months earlier. He testified there was bad blood between the
two.
Many other witnesses also testified to events on the night of the shooting.
We find it unnecessary to detail that additional evidence. Suffice it to say that,
together with the testimony summarized above, it amounted to substantial
evidence in support of the challenged elements of first-degree murder.
II.
Challenge to Peremptory Strike.
The State used a peremptory challenge to strike an African-American man
from the jury. Hunt, who is also African-American, objected to the strike. At a
reported hearing, the prosecutor stated the potential juror was struck because he
knew several potential witnesses. She continued:
And my family being a member of the African-American
community, the small, tight-knit community, and everybody
basically knows one another or of one another and I guarantee he‟s
going to know a great number of these witnesses . . . .
She added that the State also struck two members of the jury panel because
those members knew Hunt.
Hunt‟s attorney responded that the State‟s perception of the “close-knit”
nature of the African-American community in Waterloo would foreclose any
member of that community from serving on a jury involving an African-American
defendant or witness. At this point, the prosecutor added reasons for striking the
potential juror.
She mentioned that the juror said he was “like an adopted
6
brother” to certain witnesses. She also mentioned that another African-American
individual on the panel would have been on the jury had he not been excused for
a family emergency. The prosecutor discounted the juror‟s assertion that he
could be fair and impartial.
After considering these assertions and counter-assertions, the court
rejected Hunt‟s objections to the peremptory strike. The court stated:
The fact that a juror is struck because he knows potential
witnesses is not unusual and so I am going to find that the reasons
the State has elucidated are sufficiently race neutral to allow the
strike. And that‟s the ruling of the court.
On appeal, Hunt maintains that the “district court erred in accepting the
prosecutor‟s statements as a race neutral reason for exercising a peremptory
challenge on the only minority remaining on the jury panel.”
His challenge
implicates Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986). There, the Supreme Court held that, under the Equal Protection Clause
of the Fifth Amendment to the United States Constitution, a prosecutor may not
purposefully discriminate by using peremptory strikes to challenge potential
jurors solely on the basis of their race. Batson, 476 U.S. at 89, 106 S. Ct. at
1719, 90 L. Ed. 2d at 83. Because the issue is of constitutional magnitude, our
review is de novo. State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct. App. 1995).
A three-part test is used to establish purposeful discrimination. First, the
defendant must establish membership in “a racial group capable of being singled
out for differential treatment.” Batson, 476 U.S. at 94, 106 S. Ct. at 1722, 90 L.
7
Ed. 2d. at 86.1 This prima facie showing may be made “by relying solely on the
facts concerning [the jury‟s] selection in his case.” Id. at 95, 106 S. Ct. at 1722,
90 L. Ed. 2d. at 87. Second, “the burden shifts to the State to come forward with
a neutral explanation for challenging black jurors.” Id. at 97, 106 S. Ct. at 1723,
90 L. Ed. 2d. at 88. This second step “does not demand an explanation that is
persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767-768, 115 S.
Ct. 1769, 1771, 131 L. Ed. 2d. 834, 838 (1995). If a prosecutor provides a
combination of discriminatory and race-neutral reasons for the strike and the
district court only relies on the race-neutral reason, we may affirm on the basis of
the race-neutral reason. See Rice v. Collins, 546 U.S. 333, 341, 126 S. Ct. 969,
975, 113 L. Ed. 2d. 824, 833 (2006) (“The prosecutor provided a number of other
permissible and plausible race-neutral reasons, and Collins provides no
argument why this portion of the colloquy demonstrates that a reasonable fact
finder must conclude the prosecutor . . . struck juror 16 based on her race.”).
The third step requires the trial court to determine “if the defendant has
established purposeful discrimination.” Batson, 476 U.S. at 98, 106 S. Ct. at
1724, 90 L. Ed. 2d. at 88-89. “Because the trial judge‟s finding whether
purposeful discrimination exists will largely turn on evaluation of credibility, a
reviewing court should give those findings great deference.” State v. Knox, 464
N.W.2d 445, 448 (Iowa 1990) (citing Batson, 476 U.S. at 98 n. 21, 106 S. Ct. at
1724 n. 21, 90 L. Ed. 2d at 89 n. 21).
1
This element has since been modified to clarify that a defendant and the challenged
juror need not be of the same race. Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct.
1364, 1373, 113 L. Ed. 2d. 411, 429 (1991) (“[R]ace is irrelevant to a defendant‟s
standing to object to the discriminatory use of peremptory challenges.”).
8
Here, the district court proceeded directly to step two. This was not fatal
to the ruling. See State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997) (partially
overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 254 (Iowa
1998)). In overruling Hunt‟s objection to the peremptory challenge, the court
relied on the prosecutor‟s assertion that the potential juror knew some of the
witnesses.
This is a race-neutral reason.
See Knox, 464 N.W.2d at 448
(rejecting Batson challenge where prosecutor said potential juror was struck
because she knew defense counsel). While the prosecutor also indicated that
she exercised the peremptory challenge because the juror was part of a “closeknit” community, the district court did not rely on this arguably discriminatory
reason.
See Congdon v. State, 424 S.E.2d 630, 631 (Ga. 1993) (rejecting
prosecutor‟s strike of all four black members of venire where State‟s reason for
striking them was their membership in discrete community); Carroll v. State, 639
So.2d 574, 576 (Ala. Crim. App. 1993) (rejecting prosecutor‟s strike of only black
member of venire where prosecutor stated, “They come from a small community,
the same community, and it‟s our understanding they are all related to each other
by blood or marriage.”). For that reason, we affirm the district court‟s ruling. See
Hernandez v. New York, 500 U.S. 352, 361, 111 S. Ct. 1859, 1867, 114 L. Ed. 2d
395, 407 (1991) (“While the prosecutor‟s criterion might well result in the
disproportionate removal of prospective Latino jurors, that disproportionate
impact does not turn the prosecutor‟s actions into a per se violation of the Equal
Protection Clause.”).
9
III.
Prosecutorial Misconduct.
The State named Maria Thomas as a witness but declined to call her. 2
Hunt called her instead. At trial, her testimony differed in key respects from an
initial videotaped statement she gave to police. She initially told the police that
the shooter wore his hair in braids. Testimony from other witnesses established
that Hunt did not wear his hair in braids and wore it very short. At the time of
trial, Thomas said she thought she was wrong about his hair style. Thomas also
told police that the shooter was wearing dark clothes and the person who died
was wearing white. Trial testimony established that Hunt was wearing a white
jersey on the night of the shooting. When asked about this discrepancy at trial,
Thomas said she was “pretty confident” that Hunt “had on dark clothing” but,
now, she did not really remember. Thomas was also asked about a diagram she
drew during the police interview that identified the location of the shooter. This
location was inconsistent with other trial testimony. At trial, Thomas stated she
was not certain where the person who shot Robinson was when the shooting
took place.
Hunt attributed these inconsistencies to coaching by the State because, a
week prior to her trial testimony, Thomas met with a police investigator and the
prosecutors in the “sealed” courtroom.
At that time, Thomas was shown
Robinson‟s clothing and a photograph of a jersey resembling the one worn by
Hunt. The investigator and prosecutors also showed Thomas the videotape of
2
At trial, the defense stated that the prosecutor subpoenaed Thomas to come to Iowa
from her home in Florida but, on realizing her testimony would not assist the State, sent
her back to Florida without informing the defense. The district court ordered the State to
make Thomas available in Iowa for the defense.
10
her earlier statement to police. The meeting lasted “a couple hours.” Hunt urged
that this meeting was improper, amounted to prosecutorial misconduct and
entitled him to a new trial.
The district court denied the new trial motion. The court stated that the
prosecutors committed no misconduct by allowing Thomas into the courtroom to
view the items described above because, notwithstanding a sign on the door
indicating that the courtroom was sealed, attorneys and witnesses could enter.
The court also noted that Thomas was subject to examination and crossexamination and “anything untoward that occurred prior to that . . . was cured by
what happened afterwards.”
On appeal, Hunt takes issue with the court‟s ruling.
He contends the
prosecutor‟s actions were “overreaching and coercive” and severely impaired
Thomas‟s ability to present meaningful, exculpatory evidence.
Prosecutorial misconduct warrants a new trial when it is “so prejudicial as
to deprive the defendant of a fair trial.” State v. Lyons, 210 N.W.2d 543, 549
(Iowa 1973). The following factors should be considered in assessing whether
the defendant received a fair trial:
(1) the severity and pervasiveness of misconduct; (2) the
significance of the misconduct to the central issues in the case; (3)
the strength of the State‟s evidence; (4) the use of cautionary
instructions or other curative measures; (5) the extent to which the
defense invited the misconduct.
State v. Boggs, 741 N.W.2d 492, 508-509 (Iowa 2007) (citation omitted). “The
most important factor is the strength of the State‟s case against the defendant.”
Id. As a firsthand observer of both the claimed misconduct and any reaction by
the jury, the trial court is better equipped than an appellate court to determine the
11
presence of prejudice. State v. Escobedo, 573 N.W.2d 271, 277 (Iowa Ct. App.
1997). Consequently, we will reverse a district court ruling only upon a finding of
an abuse of discretion. Id.
We conclude the district court did not abuse its discretion in denying
Hunt‟s motion for new trial, based on prosecutorial misconduct. Coaching of a
witness by an attorney is not per se improper. DeVoss v. State, 648 N.W.2d 56,
64 (Iowa 2002) (“If by „coaching,‟ DeVoss means the prosecutor went over
Maggio‟s testimony with her, the claim simply has no merit. Attorneys certainly
have the right to prepare their witnesses.
It would be foolhardy not to.”).
Notably, Hunt‟s attorneys also met with Thomas in their offices and had her again
view the videotape of her earlier statement in their presence.
There is also no indication that the prosecutors told Thomas to perjure
herself. Id. (“If by „coaching,‟ DeVoss means the prosecutor told Maggio to
commit perjury, that certainly is prosecutorial misconduct.”).
While Thomas
conceded she became unsure of the events only after she met with the police
investigator and the prosecutors, she did not state that she was told to testify
untruthfully.
For these reasons, we affirm the district court‟s rejection of the
prosecutorial misconduct claim.
IV. Admissibility of Maria Thomas’s Videotaped Statement.
As noted, Thomas gave a videotaped statement to police.
The State
initially offered the statement when it filed its notice of intent to use hearsay.
Hunt responded that Thomas was not unavailable, he did not have the
opportunity to confront her, and her statements were untrustworthy. The court
excluded the videotape, citing Thomas‟s limited personal knowledge, the two
12
weeks that elapsed between the shooting and the interview, her hesitancy in
answering the questions, the lack of detail in her answers, and the fact that the
videotape did not include information not generally known. Later, Hunt attempted
to introduce the videotape. The court stated, “[B]ased on my previous ruling, the
witness had very little personal knowledge, that she was hesitant and that the
nature of the questioning was such that it makes the statement in the court‟s view
unreliable.”
Hunt contends the district court erred in excluding the videotape.
He
relies on an exception to the hearsay rule for recorded recollections. See Iowa
R. Evid. 803(5). That rule states:
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately, shown to have
been made or adopted by the witness when the matter was fresh in
the witness‟s memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into evidence
but may not itself be received as an exhibit unless offered by an
adverse party.
The rule contains several requirements. A witness must be shown to have had
an incomplete recollection.
State v. Thompson, 397 N.W.2d 679, 682 (Iowa
1986). Thomas was asked “So you‟re not confident about anything that you saw
that evening, is that what you‟re saying?” Her response was, “Yes. I cannot
remember.” The rule also requires a showing that the witness‟s recollection of
events at the time of the recording was “fresh.” Id. at 683. The videotape was
taken less than three weeks after the shooting. In Thompson, the court found the
freshness requirement satisfied where there was a thirty-one day gap between
the incident and the deposition. Finally, the rule requires a satisfactory showing
13
of “the accuracy of the process utilized to record that recollection.” With respect
to this requirement,
The jury should hear the witness state under oath that the prior
statement was accurate and he should be subject to crossexamination on this point. [A witness‟s] failure to say that . . . he
gave the statement [and] it was accurate prevent[s] application of
Rule 803(5).
Id. (quoting 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 803(5)[01], at
167 n. 48 (1985)). Thomas agreed with defense counsel that the videotape
“would accurately reflect what [she] believed or thought [she] saw at the time.”
She also stated, “I was nervous, I think, but I pretty much was honest.” Finally,
she stated that “the only thing I‟m for sure about is what I previously said.” We
conclude Hunt satisfied the requirements for admission of the videotape under
this hearsay exception.
This does not end our inquiry.
We must also determine whether the
court‟s exclusion of the videotape amounted to harmless error. See State v.
Traywick, 468 N.W.2d 452, 454 (Iowa 1991). The test for nonconstitutional error
is “whether it sufficiently appears that the rights of the complaining party have
been injuriously affected or that the party has suffered a miscarriage of justice.”
Id. at 454-55.
At trial, defense counsel elicited the portions of Thomas‟s videotaped
statement that assisted Hunt. Specifically, he asked her what she told the police
about the style of the shooter‟s hair, the clothes the shooter was wearing, and the
general location of the shooter. Because her answers to these questions came
out at trial, Hunt was not prejudiced by the exclusion of the videotape. See State
v. Ritchison, 223 N.W.2d 207, 212 (Iowa 1974) (“[T]he evidence defendant
14
desired to introduce before was otherwise established and any error in denying
defendant‟s mistrial attempt was made nonreversible.”).
V. Impeachment Evidence.
State witness Tony Smith testified that Hunt confessed his involvement in
the shooting of Robinson. Defense counsel asked the district court to allow him
to impeach Smith with prior crimes. In addition to drug and theft convictions,
Smith was awaiting sentencing on four forgery counts and had an additional
fourteen forgery counts pending against him.
The district court allowed defense counsel to cross-examine Smith on the
prior drug and theft convictions. With respect to the forgery counts, the district
court stated:
On cross-examination I will allow the defendant to explore in
a limited fashion the fact that the witness has other charges
pending against him and whether or not he hopes to receive a
benefit as a result of this testimony. And but as far as the number
of counts or the number of potential years, that is -- I won‟t allow
cross examination as to those, but I will allow examination into the
fact that he has a number of charges and will leave it at that, a
number of charges pending against him and what he hopes to gain,
if anything.
Hunt contends the court erred in excluding “the witness‟s prior forgery
convictions” under Iowa Rule of Evidence 5.609.3 The State concedes this error,
stating “the court was required to admit evidence that Smith pled guilty to a crime
of dishonesty or false statement.” State v. Brodene, 493 N.W.2d 793, 797 (Iowa
1992) (“We think the witness‟s guilty plea to extortion amounted to a „conviction‟
for purposes of rule 609(a).”). The State argues, however, that the court should
3
On appeal, Hunt does not argue that evidence of the fourteen additional forgery counts
should have been admitted.
15
have “discretion to exclude overly detailed or speculative testimony.” The State
further maintains that “Smith‟s honesty and credibility were adequately
impeached by” the evidence of past crimes that was admitted.
We agree with the State‟s second argument.
Defense counsel cross-
examined Smith extensively about his honesty. He asked Smith “so the fact that
you have counts pending against you has nothing to do with your testimony
today?” Smith answered “no, it does not.” Counsel next asked Smith about the
list of times he had been in jail over the previous year and a half. Smith admitted
he had been incarcerated.
Defense counsel also inquired about the prior
convictions the court earlier allowed. Smith admitted he had those convictions.
Counsel asked Smith about claimed confessions made to him in other cases and
suggested Smith was trying to get a deal by testifying.
Smith admitted to
testifying in other cases but denied he was trying to get a deal. The point,
however, was made. By the end of his cross-examination, the jury was aware of
Smith‟s criminal background, including his incarceration, and was aware that
Smith had a motive to testify about a confession. On this record, we conclude
the district court‟s refusal to permit an inquiry into Smith‟s four forgery convictions
amounted to harmless error. See Traywick, 468 N.W.2d at 454.
VI. Jury Instruction.
Hunt takes issue with the district court‟s submission of a jury instruction
stating:
Where two or more alternative theories are presented, or
where two or more facts would produce the same result, the law
does not require each juror to agree as to which theory or facts
leads to his or her verdict. It is the verdict itself which must be
unanimous, not the theory or facts upon which it is based.
16
This jury instruction was premised on a uniform instruction that, in turn, reflects
the following principle:
The rule in Iowa is that while the jury must be unanimous on
whether a defendant committed a crime, when alternative modes or
theories of commission of a particular crime are presented, the jury
need not be unanimous on a particular means of commission of the
crime if substantial evidence to support each alternative, and those
alternative modes are not repugnant or inconsistent with other.
Gavin v. State, 425 N.W.2d 673, 678 (Iowa Ct. App.1988)
Hunt contends the jury was presented with two sets of facts that were
“repugnant.” He points to the testimony of one witness who placed him inside a
parking lot ten to fifteen feet from the rear side door of a bar and the testimony of
another witness who placed him at the front corner of the bar. On our review of
this testimony, we conclude the witnesses‟ divergent recollections of where Hunt
was standing did not render their testimony repugnant, as both witnesses
testified Hunt was running after Robinson when the shooting occurred.
Accordingly, the district court did not commit prejudicial error in giving this
instruction. Thavenet v. Davis, 589 N.W.2d 233, 236 (Iowa 1999).
VII.
Mistrial.
In his opening statement, Hunt‟s attorney suggested Robinson was
accidently shot by members of his own gang. At trial, a police investigator was
asked how many versions of events he heard over the course of the
investigation. He responded, “A total of two. By the original version and four
weeks ago during the opening statements a second version was heard.”
17
Hunt moved for a mistrial, contending the investigator violated his right to
remain silent, his right to counsel, and the attorney-client privilege. The district
court found that “everybody was surprised by the answer.” The court denied the
motion but admonished the jury as follows:
Ladies and gentlemen, just before we broke, there was a
question asked of this witness as to how many versions that he
heard as to what happened in this case. The number of versions
that this witness may have heard or the number of versions that
any witness may have heard is irrelevant and should not be
considered by you. Your job is to evaluate the testimony that you
have heard from this witness stand and from the exhibits. It is not
to rely on any number of versions that anybody may have an
opinion as to this case. And so I want to make it real clear to you
that you‟re to disregard that testimony of this witness.
On appeal, Hunt contends the district court abused its discretion in
denying the motion for mistrial.
His primary argument is that the comment
violated his right to remain silent guaranteed by the Fifth Amendment to the
United States Constitution. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct.
2240, 2245, 49 L. Ed. 2d 91, 99 (1976) (holding “the use for impeachment
purposes of petitioners silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth Amendment.”). In
deciding whether the investigator‟s testimony implicated the Doyle holding, we
ask whether the jury necessarily would believe the challenged remark was a
reference to the accused‟s silence. State v. Hulbert, 513 N.W.2d 735, 738 (Iowa
1994).
We are not convinced a jury would necessarily have connected the
investigator‟s testimony about two versions of events to Hunt‟s Fifth Amendment
right against self-incrimination.
The testimony was not a direct comment on
18
Hunt‟s right and made only oblique reference to his attorney‟s comments during
opening statements. Additionally, the fact that the district court admonished the
jury to disregard the testimony mitigated any adverse inferences the jury may
have drawn from the testimony. State v. Brown, 397 N.W.2d 689, 699 (Iowa
1986) (stating a district court‟s quick action in striking the improper response and
cautioning the jury to disregard it will prevent any prejudice). For these reasons,
we conclude the testimony did not preclude an impartial verdict or create an
“obvious procedural error.”
See State v. Piper, 663 N.W.2d 894, 902 (Iowa
2003).
We find it unnecessary to address Hunt‟s remaining arguments on this
issue. The district court was vested with discretion to decide the mistrial motion
and did not abuse its discretion in denying the motion.
VIII.
Thurmond Deposition.
Witness D‟Alan Thurmond refused to testify at trial.
The district court
ordered him held in contempt. At that point, the prosecutor attempted to have
Thurmond‟s deposition admitted into evidence pursuant to Iowa Rule of Evidence
5.804(b)(1), pertaining to former testimony.
Hunt‟s counsel objected on the
ground that Hunt‟s original attorney had a different theory of the case which was
irreconcilable with the defense being presented at trial. After hearing objections
and arguments on the issue, the court ruled that there was no indication of a rift
between Hunt and his original attorney. Later, the court expanded its earlier
ruling.
In response to defense counsel‟s objection that admission of the
deposition transcript would violate the Confrontation Clause of the United States
and Iowa Constitutions, the court stated “the questioning is, in my view,
19
sufficiently confrontive to give the indicia of reliability.”
In response to an
objection that admission of the transcript would violate the “similar motive” clause
of Iowa Rule of Evidence 804(b)(1), the Court stated “[t]he motive of defendant‟s
deposition is to nail down the testimony of an adverse witness and have it
available in the event of an inconsistent statement during trial. The court does
not find dissimilar motives.” In response to defense counsel‟s assertion that the
deposition did not reflect the benefits that Thurmond received as a result of his
deposition testimony, the court stated that this fact was addressed in the
deposition.
Finally, the Court noted that Thurmond‟s prior inconsistent
statements made to police officers could be presented to the jury through the
testimony of the police officers.
The court concluded that “to exclude the
testimony would place an unfair burden on the State.”
On appeal, Hunt contends the district court erred in admitting the
deposition.
He notes that no other witness corroborated key aspects of
Thurmond‟s testimony and he again cites the Confrontation Clauses and rule
804(b)(1). He also notes that his attorney was unable to question Thurmond
about a sentence reduction he received for cooperating with the government, as
the reduction was granted six months after the deposition.
The Confrontation Clause of the Sixth Amendment provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him . . . .” U.S. Const. amend. VI; see also Iowa Const.
art. I, § 10.
Where testimonial evidence is at issue, the Sixth Amendment
requires unavailability and a prior opportunity for cross-examination. Crawford v.
Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203
20
(2004). There is no question Thurmond was unavailable at the time of trial.
State v. Kellogg, 385 N.W.2d 558, 560 (Iowa 1986) (“A witness who has
exercised a Fifth Amendment privilege is “unavailable” for purposes of the
confrontation clause.”). But, there is also no question that he was available for
cross-examination by defense counsel during the deposition. We recognize the
“cross-examination” came in the form of direct questions by Hunt‟s attorney.
However, the attorney had the opportunity to engage in redirect examination after
the State questioned Thurmond.
In short, Hunt‟s attorney exercised the
opportunity to confront Thurmond about his version of events. We conclude the
Confrontation Clause requirements were satisfied.
We turn to Hunt‟s challenge under Rule 5.804(b)(1). That rule states:
Testimony given as a witness at another trial or hearing of the
same or a different proceeding, or in a deposition taken in
compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
As noted, Thurmond‟s testimony was given in a deposition against Hunt and
Hunt‟s original attorney had the opportunity to cross-examine Thurmond. She
did so, eliciting testimony that Thurmond was a friend of Robinson‟s, Hunt was
not running after Robinson, and Thurmond lied when he spoke to police after the
incident. The deposition was taken in the same case and was taken in defense
of Hunt. We conclude the elements of Rule 5.804(b)(1) were satisfied. See
State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996).
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IX.
Other Hearsay Evidence.
Hunt next contends the district court erred “in allowing hearsay statements
to be heard regarding witnesses who disposed of guns.” Hunt does not state the
names of the witnesses in question, cite to the transcript, or cite legal support for
his claim.
The State responds that, “[w]ithout more precise information
concerning Hunt‟s claim, the State cannot address it.”
We will decline to consider arguments that do not pinpoint specific
questions and objections the overruling of which is alleged to be error. State v.
Philpott, 702 N.W.2d 500, 504 (Iowa 2005) (holding defendant‟s arguments on
the evidentiary issues are too vague and indefinite to support the granting of
relief based on the admission of improper evidence). Accordingly, we will not
address this issue.
X.
DVD of Police Interview.
Finally, Hunt contends the trial court erred in excluding the DVD of witness
Dovien Gamblin‟s police interview. He asserts the DVD was necessary to show
Gamblin changed her story.
The district court ruled that the DVD was cumulative of other evidence.
We agree. Defense counsel questioned Gamblin about her prior statement and
inconsistencies between that statement and her trial testimony. Therefore, the
DVD was unnecessary.
AFFIRMED.
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